The following are general considerations that would be beneficial for you to keep in mind at least until the dissolution proceedings are concluded. Of course, if you have any further questions regarding the information provided below you are encouraged to bring them to my attention:
1. Psychological warfare while the divorce proceedings are pending. Psychological warfare occurs in almost every case, to a greater or lesser degree. These general guidelines may help you resist threats, or the temptation to make decisions based on guilt or on the hope that bending over backward will get him or her back. Any advice your ex-spouse offers you probably won’t be in your interest, and he or she may well use any private information you reveal against you. Meetings with your spouse that turn into opportunities to show who is in control or to get revenge, will be expensive. Using time with the kids as a counter to negotiate for some other advantage is never a good idea.
I have listed below some of the more common scenarios that may play out over the next several months:
A. "I will tell them 'x' about you, therefore you will never get the children."
['x' can be an affair, the fact that you are seeing an analyst, an "addiction" to two or three glasses of wine per day, or some other irrelevant circumstance. Chances are, 'x' has little or nothing to do with the best interests of the children and therefore will be disregarded in any planning for the children's lives.]
B. "Your attorney is a dud, or out to get our money, or why don't we use one attorney and save money, or your attorney is really partial to me, etc., etc."
[These are divide and conquer tactics. If there is a way to save attorney fees and costs we are looking for it as well and will be glad to discuss it with you.]
C. "Unless you play this my way you'll never get a dime."
[The threatener is accustomed to being in charge of things. That is no longer the case. The property will be divided evenly. Support will be awarded in accordance with legal principles.]
D. "I'll go to jail before I'll pay you a dime."
[So be it. There are various ways to enforce support obligation; ultimately, contempt of court can mean a jail term. However, this is very rarely the case and most of these people end up paying voluntarily.]
E. "I'll quit my job before I'll pay you that kind of money."
[Attempt to get a witness to this kind of a statement. If intent can be proven to avoid support obligations by quitting one's job, these support obligations would continue at the same level.]
F. "I will consider reconciling with you only if you sign this agreement."
[If you are going to reconcile, why do you need the agreement? Or why must the agreement be in favor of the party making such a demand? Be extremely suspicious of any such statements. Even if you hope your divorce will end in reconciliation, ask for what is your fair share so if there’s no reconciliation, you can still take care of yourself financially.]
G. "If you don't see this thing my way, the judge will order that we sell everything."
[The court will not order the sale of an asset unless there is a good economic reason for it in the best interest of both parties. Instead, the court will generally do all or a combination of the following:
(1) Award individual assets or obligations to one or the other party;
(2) Award an asset to both parties ˝ and ˝, for example, because the asset cannot easily be valued; or
(3) Provide that one party receive an asset such as a residence conditional on an equalizing payment or note to the other.]
If you find yourself suffering unduly from these kinds of comments and threats, keep a running diary with dates, places, occasions and summaries of conversations occurring. (Do not tape record a conversation without consent; it may be a crime.)
2. Amendment or Creation of Will or Trust. During the marriage you may have created a will or trust. Probably, that will or trust provides that your spouse will receive some or all of your assets. Since you are now involved in a change of marital status, you should consider amending or otherwise modifying your will or trust so that your assets will not pass to your current spouse. If you need a new testamentary instrument or want to revise an old one, we can assist you. However, you should be sure to ask for our assistance, as certain automatic temporary restraining orders may affect the modifications that can be made immediately.
3. Severance of Joint Tenancy Property. The title to property acquired during marriage might be held by you and your spouse in “joint tenancy” form. It is important that you identify whether any of the major marital assets are held in this form because joint tenancy property carries a "right of survivorship" feature. The right of survivorship means that in the event you are the first to die, the property will pass in full (100%) to the surviving joint tenant (your spouse), defeating any rights your heirs might otherwise have in the property (by your will or the laws of intestate succession). Conversely, if your spouse dies first, your right of survivorship will prevail as against the rights of your spouse's heirs and the property will pass in full (100%) to you. However, California community property law might defeat the joint tenancy right of survivorship feature in the event either you or your spouse dies before your divorce is final:
A. If death occurs after a judgment is entered terminating your marriage but before the court adjudicates a division of your marital property, joint tenancy property held by you and your spouse will be divided 50 50 under California community property law, meaning the surviving spouse will take only a 50% interest and the deceased spouse's 50% share will pass through his or her estate to the spouse's heirs.
B. Conversely, if either you or your spouse dies before a judgment is entered terminating your marriage, the joint tenancy right of survivorship feature is preserved; the family court will have no power to apply California community property law to the joint tenancy property and it will pass in full (100%) to the surviving spouse.
Although you may presently be in good health, I urge you to weigh the pros and cons of leaving joint tenancy title intact while awaiting final judgment of dissolution. If you take immediate steps to sever joint tenancy title, you will defeat any risk that your untimely death before divorce is final would give your spouse the right to take the entire interest in the property as against your estate. I also urge you to review your will, and consult with us regarding any appropriate changes in your estate plan in view of these proceedings.
You should be aware that an immediate severance of joint tenancy title could also work to your disadvantage should your spouse die before entry of a judgment terminating your marriage. In that event, your right to take the property in full by right of survivorship will be defeated and you will be limited to a 50% interest in the property.
Of course, the final decision is yours. Should you decide that severance of joint tenancy title is the most prudent course of action, we are available to counsel you on how to proceed. Like a will, joint tenancy title documents are not ones which are prepared in the normal course of the dissolution action, so if you are interested in having them prepared you must bring it to my attention.
Again, you should be sure to ask for our assistance, as certain automatic temporary restraining orders may affect your ability to sever a joint tenancy immediately.
4. Separation of Assets Generally. Review all of your bank and brokerage accounts, powers of attorney, living wills, credit cards and any other property that you have jointly with your ex-spouse. Generally, it is advantageous to take action to disinvolve your spouse. It is often important to apply for new credit cards in your own name, as soon as possible, to establish your own credit, and to have access to money during your divorce. Don’t assume because your name appears on a joint credit account and/or you are the one that writes checks to pay the bills, that you have credit in your own name.
5. Protection from Violence. You should inform me if your marriage involved domestic violence, or if domestic violence occurs while the dissolution action is proceeding so that we can obtain a protective order immediately. A dissolution proceeding is an emotionally charged event. Tensions caused by the dissolution may precipitate further violence, and violence becomes more likely after separation than before, particularly if your spouse has a history of violence.
6. Protection from your Spouse’s Post-Separation Spending Habits. To protect yourself from the spending habits of your spouse it is recommended, if possible, that you take steps immediately to close joint credit card accounts and other joint charge accounts, and to establish your own individual credit.
7. Developing a Reserve of Accessible Cash. You will need access to cash throughout the process of dissolving the marriage. It will be good strategy to open a bank account in your own name, and transfer into the account at least half of the funds in joint accounts. This will ultimately have to be disclosed to your spouse, but in the meantime you will be able to cope financially. If you need to borrow, avoid the high interest rates of credit cards, and apply to your credit union, or consider asking your family for a loan. You are entitled to the same life style you had during marriage, to the extent that it can be afforded, so denying yourself unnecessarily won’t help matters, but neither will over-spending.
8. Maintaining Privacy. As soon as possible, rent a post office box and change your address for the receipt of important documents and personal letters. Confidential information can be sent to you there. It also provides a consistent mailing address when you may be moving from your home. Avoid sharing personal information with or seeking advice from your spouse, because he or she will be protecting their own interests, not yours.
Please do not presume that I have provided the above information in place of representation. My office is always available to answer any questions that you may have. Instead, this letter is provided for your information and to help you minimize your legal costs during very trying times. Furthermore, I have alerted you to examples of some of the tactics which may be employed by the opposing party so that you will not be caught off guard should they occur. Finally, I discussed some issues which may need your further thought or action. Even if not all of the issues discussed in this letter are applicable to your case right now, they may become very important before a judgment is obtained. For this reason, I advise you to keep this letter and review it periodically during the course of the proceedings.
The mission of this firm is to provide quality legal services, timely delivered, at a reasonable price. My staff and I are dedicated to doing our very best to help you accomplish your objectives. We do not promise miracles, but we do promise hard work and a sincere concern for achieving the best possible outcome for you.